Public Policy Issues
Policies Affecting Separated and Divorced Fathers
By: Denise L. Whitehead
This article, which examines policies which have an impact on fathers who are separated or divorced, is a chapter in FIRA's Inventory of Policies and Policy Areas Affecting Father Involvement.
An area of increasing interest among researchers and policy makers in recent years is the changing role of fathers and the explicit desire to support father involvement as a way to enhance children's health and well-being. Although scholarly interest in fatherhood emerged in the early 1970s and 80s, the bulk of studies and policy work on fatherhood is very recent - much of it dating from the mid-1990s onwards.
This article is a chapter in the recently released Inventory of Policies and Policy Areas Influencing Father Involvement which is a collaborative document which has benefited from the ideas and suggestions of others. It is supported by funding from the Social Sciences and Humanities Research Council (SSHRC - CURA). For a full copy of this document click on Inventoryof Policies and Policy Areas Affecting Father Involvement on the left hand side of this page
Specific Issues and Policies
Separation and divorce are times of difficult transitions and much emotion. This is greatly exacerbated by the presence of children who must also undergo the transformation from a life of enjoying the care and companionship of both parents to staggered parenting, often a new home, and the financial strain and poverty experienced by many. While the financial consequences experienced by fathers are increasing as a consequence of losing the earnings of their spouse, poverty is still more likely to be an issue for women of divorce (Ambert, 2005). Poverty rates for lone-mothers have decreased 16% from 53% in 1996 to 37% in 2004 (Statistics Canada, 2006). In contrast poverty rates for two-parent families are much lower at 8%. Fathers generally fare better financially after divorce because of higher income earnings and child support pro-rated to earnings (Ambert, 2005). Fathers also benefit financially from less care of the children; and fewer direct costs as well as fewer indirect costs in the form of time away from work and time spent on care-giving tasks.
Past research has tended to focus on the “absent” father (Doherty, Kouneski & Erickson, 1998) following these events, with far less attention paid to the fathers for whom parenting still continues. New research focusing on fathers and the male experience (i.e. Baum, 2003; Juby, Le Bourdais, & Marcil-Gratton, 2005) as well as shifts in legislation, policies and court decisions, acknowledges the importance that ongoing father involvement has in children’s lives – both financially and in terms of the importance of this critical relationship. While it must be acknowledged that men make their own choices with respect to maintaining an active and engaged role in their children’s lives, and that sometimes fathers choose to remain uninvolved, there is an argument to be made with respect to the degree to which structural factors can influence these choices. Consequently, there is growing interest and greater emphasis on policies, practices and supports that can promote positive, sustained father involvement post separation and divorce. Numerous concerns and issues that may have an impact on fathers and their on-going involvement with their children have been highlighted, and will be the focus of the balance of this section.
Significance and Potential Influence on Fathers
There are three key areas that are of particular concern to fathers (and mothers as well) surrounding children and divorce: (1) how custody is decided; (2) the mechanisms by which child support is paid and enforced; and (3) issues around parenting and access.
Custody: Statistics Canada (2004) reports that in 2002, among couples who were divorcing, 28% of divorce decrees involved a determination of the custody of dependents, the vast majority of which were children under 18 years. In the remaining divorces, couples arrived at custody arrangement outside divorce proceedings or they did not have dependents.
Of the 35,000 custody orders determined through divorce proceedings in 2002, 49% were awarded to the mother, 42% were awarded joint custody to the mother and the father, and 9% were awarded to fathers only. The change from corresponding patterns evident in 1995 is noteworthy. The fact that fathers account for sole custody or shared custody in 51% of cases in 2002 is indicative of changing judicial remedies that traditionally favoured mothers. Seven years earlier, custody awards went to the mother only in 67% of cases, joint custody was awarded in 21% of the adjudicated cases, and sole custody was awarded to fathers in 10.5% of court proceedings (Vanier Institute of the Family, 2004). Note that joint custody does not necessarily mean that the children spend equal amounts of time with each parent. Changes by the Canada Revenue Agency in 2005 to apportion the Canada Child Tax Benefit and the child component of the Goods and Services Tax credit in shared custody situations reflects the growing recognition of the shared financial responsibility for the care of children (see Section B: Tax Policies).
The federal Divorce Act provides the means by which parents may seek custody of their children. Section 16 (8) provides that custody orders shall take consideration only the best interests of the child as determined by reference to the conditions, means, needs and other circumstances of the child. Furthermore, maximum contact with both parents to the extent consistent with the best interests of the child is required per section 16(10). Debate about whether to adopt the concept of “shared parenting” thereby replacing “custody and access” is ongoing (Bala, 1999; Bala & Bailey, 2004; Canada, Department of Justice, 2002; and Rhoades & Boyd, 2004). The concept of “shared parenting” would, in principle, promote the idea that parents are to be encouraged to formulate a parenting plan that divides parental responsibilities between them in a way that they deem appropriate. Some of the specific outstanding issues are addressed later in this section when gaps, critical questions and concerns are identified.
Child Support: Fathers’ economic provision for their children is an important aspect that often materially affects their children’s health and physical well-being, the likelihood of their living in poverty or strained financial circumstances, the quality of housing and neighbourhood environments, and their opportunity to participate in sports, hobbies, and recreational activities (Ambert, 2002, revised edition, 2005). Some fathers, however, feel disenfranchised from the legal system and their ex-spouse when more emphasis is placed on their ability to provide versus their ability to nurture and care for their children (Mandell, 2002). The tension surrounding fathers as breadwinners versus fathers as caregivers is receiving greater attention (Marsiglio, Day & Lamb, 2000). The tensions become apparent when fathers cite the strong concerns government agencies have in assisting in the enforcement of child support, but their lesser involvement in addressing outstanding issues related to access problems .
Parenting and Access: Access issues arise, whether instituted through joint custody or regularly mandated contact. Reports, such as the one by Le Bourdais et al. (2001), highlight the variability that exists regarding contact between fathers and their children – one-third had very frequent contact (5 months of the year); one-quarter had very little contact (less than seven days); and one child out of six had no paternal contact.
Some parents have raised issues of overt and covert behaviours utilized by a parent to alienate a child from the other parent, both through actions such as the child not being ‘available’ for visitation, to more subtle, but equally injurious actions of speaking ill of the other parent or encouraging the child to choose between them (see Freeman & Freeman, 2003). While some fathers have suggested this is a significant problem (Bala, 1999), Canadian research suggests that denial by a custodial parent is a problem in only 2% - 5% of separations (Perry, 1992).
Far more likely are the problems associated with fathers who neither pay support nor visit their child regularly. Le Bourdais et al. (2001: vi) made the following observation: “[F]athers’ propensity to fulfill their financial obligations towards their children after separation is closely linked to the amount of contact they have with them. Determining the factors likely to increase the frequency of father/child contact is therefore crucial to the process of reducing the risk of poverty to which children of separated parents are exposed.”
Gaps, Critical Questions and Concerns
$ Scant attention has been paid to the way in which men experience and deal with the emotional aspects of divorce. Baum (2003) cites distinct male patterns of mourning divorce, including starting the process after formal dissolution (women tend to start before), a focus on the loss of the children, family home and routine more than the marital relationship, and an externalization of coping mechanisms including new relationships, alcohol and work. Understanding the specific ways men handle divorce may have implications for services and programming and a better understanding of their involvement with their children. The Québec Rapport du Comité de Travail en Matière de Prévention et D’Aide aux Hommes (2004) notes that while both parties suffer after divorce, fathers often feel much worse after separation than mothers.
$ The language in the Divorce Act has been identified as needing change – emphasizing “shared parenting” - to highlight the rights of the child to benefit from both parents’ care, love and attention (Bala, 1999; Rhoades & Boyd, 2004). Concerns about the presumption of awarding sole custody to mothers has been identified as an issue requiring further study. Moloney’s (2001) review of contested Australian custody decisions found that fathers tended to get custody because of mother deficits. Furthermore, when fathers were given custody there was expressed evidence of scepticism in their ability to parent without a mother figure or about plans to reduce time at work. A report from Québec noted that precarious financial position of mothers is rarely invoked, but the precarious financial position of a father can be considered a negative element when the court is considering shared custody (Rapport du Comité de Travail en Matière de Prévention et D’Aide aux Hommes, 2004). Other issues, including parents’ ability to parent together highlight the need to investigate the circumstances under which joint custody is optimal (Bala & Bailey, 2004; Rhoades & Boyd, 2004).
$ The enforcement of child support payments with no concomitant enforcement of access and visitation leaves fathers in a disadvantaged position. They must pay a lawyer and experience delay while awaiting a court date in order to exercise visitation. Legal aid tends to be less accessible to fathers, though this is largely due to the fact that they have higher incomes and more assets, thus disqualifying them. Furthermore, legal fees are generally not a deductible income tax expense for payor parents (see Section B: Tax Policies). A Québec report notes the importance of access to legal aid for fathers, when the means to defend their rights to custody and access are compromised by their inability to retain adequate representation (see Rapport du Comité de Travail en Matière de Prévention et D’Aide aux Hommes, 2004).
$ Further research is needed to identify the extent of access problems and legislative, alternative dispute mechanisms and enforcement procedures to facilitate access for parents.
$ Violent behaviour on the part of fathers, particularly following acrimonious separations, presents real threats to mothers and children (see also Section I: Fathers at Risk). Ongoing efforts and examination of how to balance the father’s rights with the best interest of the child, which includes their safety as well as their mother’s, are required. Some fathers who pose no threat may be disadvantaged because of perceived risk due to actions of other fathers.
$ High-conflict divorces, while not the norm, pose the gravest concerns both with respect to child and parental outcomes. Facilitating alternative strategies, such as parenting coordinators, creative access agreements, and formalized procedures may be necessary to ensure that fathers do not lose contact with their children.
$ There are many new research areas to be explored. They include:
N Understanding the circumstances that deter ongoing father involvement
N Given the informal procedures adopted by many in making separation agreements, particularly among the increasing number of cohabiting couples, there is a need for data on all separations, not solely those that require a legal separation or divorce
N Analysis of contested custody decisions to ascertain the obstacles fathers face in obtaining joint custody
N Comparative analyses to learn about experiences in other countries that have an established presumption of joint or shared custody, and its impact on mothers, fathers and children
Ambert, A.M. (2005). Divorce: Facts, causes and consequences. Available from the Vanier Institute of the Family Web site: http://www.vifamily.ca
Bala, N. (1999). A report from Canada’s ‘gender war zone’: Reforming the child-related provisions of the Divorce Act. Canadian Journal of Family Law, 16, 163-227.
Bala, N. & Bailey, N. (2004). Enforcement of access and alienation of children: Conflict reduction strategies and legal responses. Paper presented on July 13, 2004 at the National Family Law Program of the Federation of Law Societies of Canada, La Malbaie, Québec.
Baum, N. (2003). The male way of mourning divorce: When, what, and how. Clinical Social Work Journal, 31(1), 37-50.
Canada, Department of Justice. ( 2002). Final Federal-Provincial-Territorial Report on Custody and Access and Child Support: Putting children first. Custody and Access Project of the Federal-Provincial-Territorial Family Law Committee. Retrieved March 28, 2006, from http://canada.justice.gc.ca/en/ps/pad/reports/flc2002e.pdf
Doherty, W. J., Kouneski, E. F. & Erickson, M. F. (1998). Responsible fathering: An overview and conceptual framework. Journal of Marriage and the Family, 60, 277-292.
Freeman, R. & Freeman, G. (2003). Managing Contact Difficulties: A Child-Centred Approach. Retrieved March 28, 2006, from the Department of Justice Canada Web site: http://www.justice.gc.ca/en/ps/pad/reports/2003-FCY-5/2003-FCY-5e.pdf
Hobson, B. (Ed.). (2002). Making men into fathers: Men, masculinities and the social politics of fatherhood. Cambridge, UK: Cambridge University Press.
Juby, H., Le Bourdais, C. & Marcil-Gratton, N. (2005). Sharing Roles, Sharing custody? Couples’ characteristics and children’s living arrangements at separation. Journal of Marriage and Family, 67, 157-172.
Le Bourdais, Juby, H. and Marcil-Gratton, N. (2001). Keeping contact with children: Assessing the father/child post-separation relationship from the male perspective. Retrieved March 29, 2006, from the Department of Justice Canada Web site:
Mandell, D. (2002). ‘Deadbeat dads’: Subjectivity and social construction. Toronto, ON: University of Toronto Press.
Marsiglio, W., Day, R. D. & Lamb, M. E. (2000). Exploring fatherhood diversity: Implications for conceptualizing father involvement. Marriage & Family Review, 29 (4), 269-293.
Moloney, L. (2001). Do fathers ‘win’ or do mothers ‘lose’? A preliminary analysis of closely contested parenting judgments in the family court of Australia. International Journal of Law, Policy and the Family, 15, 363-396.
Rapport du Comité de Travail en Matière de Prévention et D’Aide aux Hommes. (2004). Les homes: S’ouvrir à leurs réalités et répondre à leurs besoins. Québec, Canada: Rapport Remis au Ministre de la Santé et des Services Sociaux. Translated into English.
Rhoades, H. & Boyd, S. B. (2004). Reforming custody laws: A comparative study. International Journal of Law, Policy and the Family, 18(2), 119-146.
Statistics Canada. (2006). Income of Canadians. The Daily. Available at www.statcan.ca/Daily/English/060330?d060330a.htm
Statistics Canada. (2004). Divorces, 2001 and 2002. The Daily. Available at http://www.statcan.ca
Vanier Institute of the Family (2004). Profiling Canada’s Families III. Retrieved March 29, 2006, from http://www.vifamily.ca/library/profiling3/p3.html